One important reason why Creative Commons licenses should not be used to release software is that they aren’t compatible with existing free software licenses, most importantly the GPL from the Free Software Foundation, which is used by over half of free software projects. A commons fractured by legal incompatibilities is a weak commons, and it would be deeply contrary to our mission to fracture the commons of software. (It should also be noted that the FSF helped unfracture the non-software commons by facilitating Wikimedia’s migration to CC BY-SA as the main content license of Wikipedia and its sibling sites.)

While the vast majority of contemporary free software is released under the GPL or another free software license, there is also a long tradition of public domain software, which was free before the term free software existed. Indeed, prior to the 1970s, copyright did not apply to software. Currently, SQLite, an embedded database that you almost certainly use, is probably the most popular software that is dedicated to the public domain.

There are a variety of public domain dedications used to release software, which is mostly not a problem — to the extent such dedications are well-crafted, they don’t present a legal interoperability problem. This means it is possible to improve the state of the art in public domain dedications without harming the ecosystem. (Though this doesn’t mean an infinite variety of public domain dedications is optimal — at the extreme having to determine whether a new dedication is well-crafted each time one encounters a new public domain work would make using public domain works unattractive.)

In addition to licenses, Creative Commons also offers public domain tools. In creating the CC0 public domain dedication, we did set out to improve the state of the art in public domain dedications, and we think we’ve been pretty successful. Users seem to think so — ranging from governments and institutions to musicians.

We hadn’t set out with CC0 to improve on public domain dedications for software. However, since the release of CC0, we’ve been approached a number of times about using CC0 to dedicate software to the public domain. While we were happy to hear of this unanticipated demand, we wanted to tread very carefully so as to not create any unintended consequences for the free software ecosystem. This led to discussions with the Free Software Foundation, the steward of the GPL and moral leader of the free software movement.

We’re really happy to announce that the Free Software Foundation has added CC0 to its free software licenses list (which includes public domain terms). As usual, the FSF’s language is extremely clear, so we simply quote two sections from their list:

CC0 is a public domain dedication from Creative Commons. A work released under CC0 is dedicated to the public domain to the fullest extent permitted by law. If that is not possible for any reason, CC0 also provides a simple permissive license as a fallback. Both public domain works and the simple license provided by CC0 are compatible with the GNU GPL.

If you want to release your work to the public domain, we recommend you use CC0.

If you want to release your work to the public domain, we encourage you to use formal tools to do so. We ask people who make small contributions to GNU to sign a disclaimer form; that’s one solution. If you’re working on a project that doesn’t have formal contribution policies like that, CC0 is a good tool that anyone can use. It formally dedicates your work to the public domain, and provides a fallback license for cases where that is not legally possible.

We’ve also added an entry to the CC0 FAQ about using CC0 to release software, which you ought read if you’d like to do that. If you’re only familiar with the way CC licenses and public domain tools are typically used on web pages and other media, be aware that with free software, the full license (or public domain terms) are usually included with the software. In order to make this easy to do, we’ve taken this opportunity to fulfill a longstanding request — plain text copies of the “legalcode” for CC0 and CC’s six main international licenses. See CC software engineer Chris Webber’s post for details.

Special thanks to Chris Webber and the FSF’s Brett Smith for their persistent work to make the CC0 software recommendation possible.

Today the Federal Communications Commission (FCC) released its long-awaited National Broadband Plan. The plan aims to “stimulate economic growth, spur job creation, and boost capabilities in education, healthcare, homeland security and more.” The FCC has taken particular interest in the power of broadband to support and promote online learning. We applaud the FCC for working to make this a priority, especially in exploring how broadband can enable access to and participation in the open educational resources movement, empowering teachers, students, and self-learners. In the plan, the FCC offers several recommendations in expanding digital educational content. A few of the recommendations are listed below:

Recommendation 11.1: The U.S Department of Education … should establish standards to be adopted by the federal government for locating, sharing and licensing digital educational content by March 2011.

While digital content is available currently, there are significant challenges to finding, buying and integrating it into lessons. Content is not catalogued and indexed in a way that makes it easy for users to search. It is also hard for teachers to find content that is most relevant and suitable for their students. Even if one finds the right content, accessing it in a format that can be used with other digital resources is often difficult or impossible. And if the desired content is for sale, the problem is even harder because online payment and licensing systems often do not permit content to be combined. These three problems—finding, sharing and license compatibility—are the major barriers to a more efficient and effective digital educational content marketplace. These barriers apply to organizations that want to assemble diverse digital content into materials for teachers to use, as well as to teachers who want to assemble digital content on their own. Digital content standards will make it possible for teachers, students and other users to locate the content they need, access it under the appropriate licensing terms and conditions, combine it with other content and publish it.

Recommendation 11.2: The federal government should increase the supply of digital educational content available online that is compatible with standards established by the U.S. Department of Education.

[ … ] Whenever possible, federal investments in digital education content should be made available under licenses that permit free access and derivative commercial use and should be compatible with the standards defined in recommendation 11.1.

In part due to a lack of clarity regarding what uses of copyrighted works are permissible, current doctrine may have the effect of limiting beneficial uses of copyrighted material for educational purposes, particularly with respect to digital content and online learning. In addition, it is often difficult to identify rights holders and obtain necessary permissions. As a result, new works and great works alike may be inaccessible to teachers and students … Increasing voluntary digital content contributions to education from all sectors can help advance online learning and provide new, more relevant information to students at virtually no cost to content providers … Congress should consider directing the Register of Copyrights to create additional copyright notices to allow copyright owners to authorize certain educational uses while reserving their other rights.

Many of these recommendations can help to enable the sharing and downstream reuse of Open Educational Resources (OER) via public licenses that grant broad permissions. And as we wrote last week, the Department of Education–through the National Education Technology Plan (PDF)–has already offered suggestions for how open licensing can aid teaching and learning by making content created by the federal government available for use or adaptation.

One recommendation, however, misses the mark – the suggestion that Congress direct the Copyright Office to create a new copyright notice to allow rightsholders to authorize specific education uses of their content while reserving all other rights. While the suggestion for this (e) mark is a good first step in recognizing the need for educational content to be shared widely, its utility will be limited and its implementation confusing. To begin with, it’s difficult to determine what will qualify as “educational” content and use. Creative Commons considered this 7 years ago and has revisited the question since, as an “education license” sounds very appealing. The reality is that allowing educational uses, or worse allowing only certain educational uses, adds to the growing problem of non-interoperable content silos whose contents cannot be intermingled without running afoul of copyright. These qualifiers are counter-productive in that they inhibit rather than incentivize use by teachers, learners, and others of the resources stored and isolated in the silos. “Education only” uses would dampen innovation by publishers and other content creators that otherwise would be enabled under an open license granting broad permissions.

Additionally, narrow permissions break the promise of a widely interoperable commons. Public licenses that grant broad permissions for the use and reuse of content provide the most clear path forward in solving the interoperability problem. Creative Commons supplies a standardized framework for such public lienses, and has been adopted by many in the education community. It is important that any future initiative intended to increase sharing of eudcational content–legislated or otherwise–consider interoperability with existing OER as a design requirement.

The FCC has recognized that robust broadband infrastructure is crucial for citizens to participate effectively in the 21st century digital environment. Open licensing is a piece of this critical infrastructure. Creative Commons hopes to continue to work closely with the FCC, the Department of Education, and the OER community in order to implement the infrastructure necessary to support and promote online learning.

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